019-SLLR-SLLR-1999-V-1-SAHEEDA-UMMA-AND-ANOTHER-v.-HANIFA-AND-OTHERS.pdf
150
Sri Lanka Law Reports
[1999] 1 Sri L ft
SAHEEDA UMMA AND ANOTHER
v.HANIFFA AND OTHERS
COURT OF APPEALDE SILVA, J„
WEERASURIYA, J.
A. NO. 212/97
C. PUTTALAM NO. 109/LNOVEMBER 4, 1998JANUARY 21, 1999
Civil Procedure Code s. 28, s. 408 – Settlement – Fraudulent Proxy – Revisionaryjurisdiction – Is the Settlement void – Restitutio-in-integrum – Prescription Ordi-nance No. 22 of 1871 – S. 11.
The plaintiff-petitioners and the 1st plaintiff-respondent instituted actionseeking a declaration of title to the land in question and further sought an orderof ejectment of the defendants.
The three plaintiffs had a joint proxy given in favour of Mr. Ibunu, Attorney-at-law.
The 1st plaintiff-petitioner had subscribed to the said proxy by placing herthumb impression.
The plaintiff's Attorney Mr. Ibunu died, and Court failed to issue noticeon the parties in terms of s. 28 CPC. It appears that after the death of Mr. Ibunua new proxy dated 1.7.91 had been filed with a signature said to be that of the1st plaintiff petitioner. A settlement had been effected between the partieson 22.12.1993. A commission had been issued in terms of the settlement andthe Commissioner had returned the commission stating that 1st plaintiff-petitionerhad taken objection to his surveying and allotting lots on the land. However, Courtmade order directing that the parties to the action be allotted their lots inaccordance with the Commissioner's Plan.
An Application by the plaintiff-petitioner to the District Court to set aside the saidpurported settlement was rejected.
CA
Saheeda Umma and Another v. Haniffa and Others
151
Held:
It is clear that some interested party has placed her signature on theproxy purporting to be that of the 2nd plaintiff-petitioner. She had deniedsigning the proxy as she is an illiterate person.
Thesettlement had been entered into by tendering a fraudulent proxy of
the2nd plaintiff-petitioner. Therefore, the Courthas nojurisdiction to
permit a settlement and as such there is a total lack of jurisdiction.
Under such circumstances, the settlement is voidand canbe challenged
bothin the very Court and in the proceedings inwhich itwas had, and
also collaterally.
Application for restitio in integrum is an action within s. 11 of the PrescriptionOrdinance – it is prescribed within 3 years.
Per de Silva, J.
"Powers of Revision of this Court are wide enough to embrace a caseof this nature. Even though the plaintiff-petitioners have not invoked therevisionary jurisdiction we propose to exercise the Revisionary powers in favourof the 2nd plaintiff-petitioner.”
APPLICATION by way of Restitutio in integrum.
Cases referred to:
Punchi Banda v. Punchi Banda – 42 NLR 382.
Ukku Amma v. Paramanathan – 63 NLR 306.
Babun Appu v. Simon Appu – 11 NLR 115.
Wickremasooriya v. Abeywardana – 15 NLR 472.
Silindu v. Akura – 10 NLR 193.
S. R. Crosette Thambiah for 2nd plaintiff-respondent.Malaka Herath for 3rd plaintiff-respondent.
Cur. adv. vult.
152
Sri Lanka Law Reports
[1999] 1 Sri LR.
March 11, 1999.
DE SILVA, J.
The plaintiff-petitioners in this application are seeking to set aside thesettlement purported to have been entered into by the parties in thiscase, on 22.10.1993 and relief by way of restitutio in integrum.
The plaintiff-petitioners and the 1st plaintiff-respondent (SinnathambyMeera Salibu) instituted action by plaint dated 29. 12. 1975, againstthe defendant-respondents seeking –
a declaration that they are the owners of the land describedin the schedule to the plaint;
for an order of ejectment of the defendants therefrom anddamages.
The plaint seemed to have been amended twice and the secondamended plaint was dated 18. 06. 1982. The answer too had beenamended by the defendant-respondents accordingly and amendedanswer was dated 06. 08. 1982.
At the time of the institution of the action, a joint proxy had beenfiled by one Mr. Ibunu, Attorney-at-law, on behalf of the three plaintiffsin the case. The 1st plaintiff-petitioner (Sinnathamby Saheeda Umma)had subscribed to the said proxy by placing her thumb impression.
A perusal of the journal entries from 18. 07. 1985 to 27. 02. 1990indicate that the trial in the case had commenced and a part ofevidence had been led. However, in May, 1990, the plaintiff's AttorneyMr. Ibunu had died and Court had failed to issue notice on the partiesin terms of section 28 of the Civil Procedure Code. The 1st plaintiff-petitioner Sinnathamby Saheeda Umma had conceded that after thedeath of Mr. Ibunu she did not take any interest in the case.
CA
Saheeda Umma and Another v. Haniffa and Others
(De Silva, J.)
153
It would appear that after the death of Mr. Ibunu, a new proxydated 01. 07. 91 had been filed with a signature said to be thatof the 1st plaintiff-petitioner Sinnathamby Saheeda Umma. She haddenied signing such a document as she is an illiterate person andcan only place her thumb impression on any document whichrequires a signature. In proof of this fact, the original proxy marked(P1) and statement made by her husband Pitchchi Musthapha to theMundal Police were produced by the plaintiff-petitioners.
With the filing of the purported new proxy on 01. 07. 1991, furthertrial was fixed for the 06. 09. 1991. Thereafter, trial in the case hadbeen postponed on several occasions for various reasons and on22. 12. 1993 a settlement had been effected between the parties.A commission had also been issued on Mr. Watson Perera, licensedSurveyor, in terms of the said settlement.
The Commissioner returned the commission stating that 1st plaintiff-petitioner Saheeda Umma had taken objection to his surveying andallotting lots on the land. Nevertheless, on a subsequent direction,the Commissioner tendered his plan bearing No. 1215 whereupon,Court made order on 25. 11. 1994 directing that the parties to theaction be allotted their lots in accordance with the said plan and reportof the Commissioner, and decree to be entered accordingly.
The position of the 1st plaintiff-petitioner Saheeda Umma is thatshe came to know about the purported settlement only on12. 12. 94 when the defendant-respondents fixed post for the purposeof fencing the land. She made an application to the District Courtof Puttalam to set aside the said purported settlement. After an inquirythe learned Additional District Judge rejected her application by orderdated 09. 07. 1996. Thereafter, the 2nd and 3rd plaintiff-petitionerssought relief from this Court by way of restitutio in integrum.
At the hearing of this application, counsel for the 2nd plaintiff-petitioner contended that Saheeda Umma was never a party to the
154
Sri Lanka Law Reports
[1999] 1 Sri LR.
said settlement or any of the proceedings after the death of theoriginal registered Attorney, namely Mr. Ibunu, due to the fact thatshe was never represented by any Attorney-at-law appointed by wayof a proper proxy.
In view of this, the submission of the counsel was that thesettlement arrived at on 22. 10. 1993, was not in confirmity with therequirements of section 408 of the Civil Procedure Code and isdevoid of any consequences.
Section 408 of the Civil Procedure Code provides that only in theevent that all parties to a settlement are present before Court eitherby person or by representation by a recognized agent, a settlementcan be lawfully entered into. It was held in Punchi Banda v. PunchiBandaf'* that when settlements, adjustments, admissions, etc., arereached or made there nature should be explained clearly to theparties and their signatures or thumb impressions should be obtained.In the case of Ukku Amma v. ParamanatharF> Court came to theconclusion that not only where the provisions of sections 408 and91 of the Civil Procedure Code as to notification to Court by motionnot complied with, but there was nothing on record to show at whoseinstance the settlement was arrived at that the decree enteredin terms of the settlement should be vacated.
Counsel for the defendant-respondents submitted that relief by wayof restitutio in integrum is not available to the 2nd and 3rd plaintiff-petitioners as the settlement complained of was entered on22. 10. 1993 that is more than four years before the invocation ofthe jurisdiction of this Court. He relied on the decision of Babun Appuv. Simon Appt/3) where it has been held that a party seekingrestitution must act with utmost promptitude.
Counsel also contended that as Saheeda Umma has admitted thatshe failed to take any interest in the case after Attorney Ibunu's deathshe is not entitled to the relief. He cited the decision in Wickremasooriya
CA
Saheeda Umma and Another v. Haniffa arid Others
(De Silva, J.)
155
v. Abeywardenat*' which states that where there has been negligenceon the part of the applicant seeking relief by way of restitution suchrelief should not be granted. In Silindu v. Akurat51 it has been heldthat an application for restitutio in integrum is an action within themeaning of section 11 of Ordinance No. 22 of 1871 and is barredin three years. Since relief by way of restitutio in integrum isprescribed after three years, we hold that the objection of thedefendant-respondents is valid and the plaintiff-petitioners are notentitled to get any benefit under that. Nevertheless, the powers ofrevision of this Court are wide enough to embrace a case of thisnature. Even though the plaintiff-petitioners have not invoked therevisionary jurisdiction we propose to exercise the revisionary powersin favour of the 2nd plaintiff-petitioner. We are mindful of the fact thatrevisionary powers should only be exercised in exceptional circum-stances such as –
where there has been miscarriage of justice;
where a strong case for the interferences of the SuperiorCourts have been made out by the petitioner:
where the petitioner proves to the satisfaction of Court thathe was unaware of the order made by the original Court.
In the instant case, it is clear that some interested party has placeda signature on the proxy purporting to be that of Saheeda Ummathe 2nd plaintiff-petitioner. She had denied signing of such a documentas she is an illiterate person. In the original proxy (P1) given toMr. Ibunu, the fact that she has placed her thumb impression is clearlyproved. There is no reason for us to disbelieve her when she saysshe never signed a proxy to be given to any other Attorney after thedeath of Mr. Ibunu. No affidavit has been furnished from the seniorAttorney who held the proxy on behalf of Saheeda Umma to say thatshe in fact signed the proxy in his presence. To prevent this kindof abuse or fraud, some Courts now insist that the proxy shouldindicate the number of the identity card of the person who signs it.
156
Sri Lanka Law Reports
[1999] 1 Sri LR.
The settlement had been entered into by tendering a fraudulentproxy of the 2nd plaintiff-petitioner. Therefore, the Court has nojurisdiction to permit a settlement and as such there is a total wantof jurisdiction. Under such circumstances, the settlement is void andcan be challenged both in the very Court and in the proceedings inwhich it was had and also collaterally. We hold that the settlemententered on 22. 10. 1993 is bad in law and devoid of any legalconsequences.
The 2nd plaintiff-petitioner Sinnathamby Kabeer too had madecertain allegations regarding the purported settlement. In view of theabove findings, we do not propose to consider those allegations asthe outcome of that will not affect our decision.
We set aside the settlement of 20.10.1993 recorded by the DistrictJudge in case No. 109/L as well as the judgment and decree madethereafter. We also set aside the order of the Additional District Judgedated 09. 07. 1996. We direct the District Judge to continue withthe trial according to law on tendering a fresh proxy by the plaintiffsin the case.
This application is allowed with costs.
WEERASURIYA, J. – I agree.
Application allowed.